Communication, Laws and regulations – When, if at all, is it appropriate to regulate the internet

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The internet is the network linking computers on a worldwide scale. This ‘net’, as it is often called enables each computer user to interact with other computers through the existing telecommunications network (phone lines, satellite connections, cable), without consideration of distances or borders. This system, gave birth to the notion of ‘Cyberspace’, term created by the writer William Gibson in his book Neuromancer and defined as “a consensual hallucination experienced daily by millions of legitimate operators, in every nation”1. Peoples gain access to the cyberspace through an Internet Service Provider (ISP).

Another good definition of the internet can as well be found in the words of James Gillies: “The World Wide Web is like an encyclopaedia, a telephone directory, a record collection, a video shop, and Speakers’ Corner all rolled into one and accessible through any computer”2. The terms ‘internet’, ‘cyberspace’ and ‘World Wide Web’ are nowadays synonyms but in fact are describing three different things. Internet is the network, the hardware used to link computers together. The cyberspace is the border-free virtual territory created by this network and the WWW is a service accessible on the net.

However, in the following essay, these words will be used as synonyms for the expression “the use of internet” appeals to the accessibility of the content and mainly to the notion of cyberspace.

The internet differs from the other types of mass media (TV, radio, newspaper) for it is possible for all users to publish any kind of content. These various contents can be hosted by any ISP. The humongous size of the internet (approximatively 2 billion of publicly accessible web pages3), its exponential growth and the liberated environment it represent make it very difficult to exert any kind of control on the content of the broadcast. Everything is more or less available on internet sites, from e-business to child pornography.

This easy availability of any kind of material, including illegal or offending content (child and adult pornography, racial abuses, recipe books for wannabe terrorists, breaches of copyrights, etc…) has led to a huge pressure for more control or regulation. Nevertheless, opinions are split on the subject for internet have always been seen by a majority of users as a territory of complete freedom. Moreover, internet regulations can also be used by dictatorships to censor freedom of information, argument that has always been used by the strong supporters of an unregulated Web.

Tim Berners-Lee, creator of the World Wide Web describe the nature of its invention as “a vision encompassing the decentralized, organic growth of ideas, technology, and society… it is a vision that provides us with new freedom, allows us to grow faster than we ever could when we were fettered by the hierarchal classification systems into which we bound ourselves”4.

No need then to say that the very idea of regulating the use of internet (which is majoritarily conducted through access to the World Wide Web) would tend to restrain that vision. Those who argue that regulating the internet would be indesirable join this opinion saying that “its unregulated nature, along with low entry costs, has encouraged commercial and social innovation and self-expression”5.

The question to know when, if at all, it is appropriate to regulate the use of internet can only be answered to by a study of the already evoqued nature of the internet, the culture it gave birth to, and the risks society is facing in front of the emergence of this brand new medium. A closer look to the regulatory options available can also help one reckoning to what extent regulation is desirable.

I- The nature of the internet:

“Internet is the fabric of our lives” it has the “ability to distribute the power of information throughout the entire realm of Human activity”6 and to paraphrase Manuel Castells opening title: the network is the message. As all networks, internet has the particularity to be anarchical, adaptable and very flexible. As all networks, its growth is powered by the contribution of all its users, a fact that makes this growth virtually uncontrollable. This growing process refers not only to the size of the ‘net’ but also to its content. As acknowledged supra, it is possible to find virtually anything on the internet.

As a result, the upgrades and eases brought to us by the Information Highways are affecting every aspect of our lives and of our societies. Education, consumption, entertainment… and of course deviances.

The existence of this network raises specific societal issues linked to morality, equality of access, freedom of expression and of information, territoriality and disappearance of borders and propriety of such a social Pandora box. The perfect illustration of that set of concern is lurking under the words of Kurt Anderson: “Starting with baby boomers, the big idea is getting whatever you want right this second, now. TV 24 hours a day, sex, drugs all of that… so the web delivers in spades – books now, CDs now, flowers and groceries now, stocks, data, letters, anything I want I can get now, all of the time by tapping a button”7.

The nature of the internet is responsible for its huge impact on our societies. Yet these societies are managed by politics throughout the use of norms. In many ways, internet, by its development free of rules and the changes it induced, allows people to bypass these norms. This is the main risk.

Internet can be described as anonymous, uncontrollable and interactive.

Anonymity is granted on the internet because it is virtually impossible to locate with precision its users. Of course, this anonymity is not granted by the omission of one’s name and address or the use of aliases. By using a computer at his home or office, a user can be still identified. But the truth is that all one needs to get connected is a computer, a modem, a connection (phone line, cable, etc…) and an access (i.e. a provider).

And technology as well as access to public computers can help the wannabe anonymous user to wipe out all possibilities to be identified. Moreover, the volume of online communications is a true obstacle to the identification process.

Interactivity can be seen as the reason of the existence of the internet. Indeed, the main purpose of this global network is the transit of data stored in the computers that are constituting the network.

Internet is, at last, uncontrollable. Of course, the access to the hardware and its propriety (cables, satellites, lines) can allow shut down of sites or entire domains, but by doing so, no real control is gained. On the one hand, creating, duplicating or renaming a site is very easy. On the other hand harshest measures (suppression of servers or domain parts, closing of gateways) are not really foreseeable because of being undiscriminating. Once again, the size of the net is an obstacle. Some countries tried to find control in engaging the liability of the provider. But it is very unrealistic to assume that providers will have the opportunity to check the content of each hosted site and the ability to provide an effective way of filtering offending material only. And, of course, it is easy to find a provider from a country with a different legislation: “governments could do little to control communication flows able to circumvent geography and thus political boundaries”8

II- The risks resulting from the existence of internet.

“The audacious Prometheus, according to Greek mythology stole the fire from the Olympic Gods. When Zeus saw the glow of fire on earth, he became very angry and punished humanity by sending Pandora. She carried a mysterious box and when she could not control her curiosity, she opened it. All the disasters and plagues that were in the box spread around the world….the myth warns us that progress exacts a price: the anger of Zeus…. Technology inevitably brings great benefits and awesome risks”9.

As is as been said supra, Internet offers brand new opportunities to infringe the law (For example, according to CBS, internet crime is the fastest growing crime in the US10).Those new opportunities should not be seen as being born of the emergence of internet, for mostly all online offences or crimes already exist and existed before the creation of the net. Except maybe for the concept of hacking, internet only offers a new and easier way to breach the law as well as possibilities to escape the usual punishment for those breaches. Of course, it would be impossible and useless to try to list the different kind of internet crimes. But a general pattern can be found.

Internet ignores boundaries. From his room, office, etc…one can reach the other side of the world. This idea is very enjoyable, except when it comes to cyber crime. Indeed, “physical borders between states have always determined which set of normative rules apply to individual behaviour”11. Of course, laws apply online in the same way they do offline, but the international nature of the internet takes the crimes outside national jurisdictions.

In fact, it is not only that a user from a country can infringe the laws of another country, but more the idea that the crime is committed on an imaginary soil: the Cyberspace.

The only acceptable (but still fictional) projection of geographical concepts on this imaginary territory is to assimilate it to the whole world but a world in which no borders would exist. Governments have tried to ignore that fact, trying to regulate the accessibility of certain materials from their countries. But with no success at all, except maybe in dictatorships (accessing forbidden material in China has been so far sanctioned by 2 to 4 years of imprisonment12) for it is hardly possible to exert such a control without breaches of Human Rights (freedom of expression and of information). This border free environment is triggering a great demand for a set of international rules on the internet, indeed a much more realistic solution for the purpose of regulating cyberspace.

A corollary of this absence of boundaries and of diversity of legislations is that it becomes impossible for an internet user to know if the material he dispatches on internet is not illegal somewhere. In fact, with the already quoted example of China, but also Saudi Arabia or Singapore, it actually is nearly impossible not to breach a set of laws when broadcasting material on internet. For example, who knows what impact consulting a syllabus of Human Rights law accessible on a Dutch university site can have on the life and freedom of a Chinese student? Not to talk about moral norms: it might be impossible to surf internet chat rooms without offending someone for such reasons as cultural differences.

Amongst the most common breaches of the law on internet, three different kinds must be more closely studied. On the one hand, there are the breaches of privacy. According to American statistics, online, every 79 seconds, a thief steals someone identity, open accounts in the victim’s name and goes on a buying spree13.

Another example is to be found in so-called petitions distributed throughout the web, under false reasons, in order to collect people’s personal information. For example, at the edge of the war in Iraq, a “UN petition” circulated, forcing the UN to open a site denying that they were using internet for the purpose of petitioning14. The same concern occurs with e-commerce and internet consumers. More than just being flooded by publicity, it is about the legitimate fear that companies may gather and sell personal data to others companies, turning these data into a commercial good. Of course, if the only material sold is somebody’s address no real harm is caused. But it can be medical data, credit card numbers, insurance numbers or information, etc15…A good example of the foreseeable extremities such behaviour can trigger is to be found in Bruce Sterling’s fictions16.

On the other hand, the second types of cyber crimes are the breaches of copyrights, patents or trademarks. Indeed because internet purpose is the transfer of information on a wide scale, the data protected by the rules of intellectual property are not safe. Let’s consider a set of practical examples: if a person buys a book, nothing can really impeach that person to scan it and make it available for all internet users.

The problem is even more acute with video material because in this case, the buyer is not even facing the deterrent task of scanning several hundred pages. For example, the worldwide expected movie ‘Matrix reloaded17’ is to be released the 21.05.2003 but is already available on the internet. But the problem is much more serious with music. Two creations are at the origin of a revolution in the domain of music piracy. The first one, a new standard of compression called MP3 divides by twenty the storing space necessary for music, allowing users to stock hours of music on their hard drives (on average, five megabytes are needed for a 3 minute song and hard drives now have an average capacity of twenty to forty gigabytes). The second one is a new generation of sites initiated by a site called Napster.

The principle of these sites is to allow their members to put in common their hard drives: if a user is looking for a song, he launches an inquiry about the title of that song and will have access to all the hard drives on which the song is stored. Moreover, the song can be downloaded from several hard drives at the same time, consequently reducing the required downloading time. Associated with the propagation of CD recorders, Napster transformed a marginal crime (piracy) into an everyday habit amongst internet users (at its peak, Napster had over 80 million registered users18). Napster faced an US legal action and was forced to quit with peer-to-peer file sharing (as it is called). But the damage was done: other sites are opening every day (the most frequented one is now Casa19).

Finally, the last category of cyber crimes is linked with child abuses, most of the time, sexual abuses. In America, 95% of the schools are connected to internet. Over 45 million of children ages 10 to 17 are internet user. Among them:

– One in five has been sexually solicited.

– One in four has encountered unwanted pornography.

– Almost 60% have received an e-mail or an instant message from a stranger and half have communicated back.

– Over 75% of internet crimes involving sexual solicitations of children and exposure to unwanted pornography is not reported to police or parents.

Those statistics have to be associated with crimes that are not taking place on the internet but are triggered by a cyber encounter: the site reports the story of “a 13-year-old Connecticut girl [who] was found murdered after she agreed to meet a 21-year-old married man she had met on the internet” or the story of an undercover police officer pretending to be a teenager on internet whose arrest record of internet paedophiles is regrettably impressive20.

There is, of course a lot of other cyber crimes but these are the most common ones. On the internet, another category of criminals are reaching a quasi-mythological status: the hackers. High-tech pirates, the hackers have for commitment breaching every kind of computerized security protocols. From the algorithm protecting credit cards (and creation of ‘yes-cards’ always accepted and credited by the cash machines) to the confidential files of the CIA or the FBI (see the Kevin Mitnick case) hackers are turning the cyberspace into a security-free area in a nihilistic frenzy.

Despite the legend rapidly growing around their prowess, Hacking remains a marginal and dangerous activity which, most of the times, brings the hacker in the grasp of justice.

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